U.S. v. Whitmore

Decision Date13 May 1994
Docket NumberNo. 91-50240,91-50240
Citation24 F.3d 32
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thomas Clifford WHITMORE, aka Lil Tommy, aka Young Tommy, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Maureen R. Kallins, San Francisco, CA, for defendant-appellant.

Lisa B. Lench, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: SKOPIL, HALL, and RYMER, Circuit Judges.

Per Curiam; Concurrence by Judge RYMER.

PER CURIAM:

Thomas Clifford Whitmore appeals his convictions for a variety of narcotics-related offenses. Whitmore and 15 co-defendants were charged in a 44-count indictment with numerous drug-related offenses. The government's theory of the case placed Whitmore at the center of an ongoing narcotics conspiracy, which began in early 1986 and continued until Whitmore's arrest in August 1990. A jury found Whitmore guilty on 16 counts.

We reject most of Whitmore's challenges in an unpublished disposition. Here, we consider Whitmore's appeal of his two convictions for using a communication facility to engage in drug trafficking. 21 U.S.C. Sec. 843(b). This appeal requires us to decide whether the district court's failure to instruct on the knowledge element of the Sec. 843(b) offenses is plain error.

I

This opinion considers Whitmore's appeal of his convictions on Counts 25 and 30. Count 25 of the indictment charged that, on July 19, 1990, Whitmore and Rodney Hairston used a communication device (the telephone) "in committing and causing and facilitating the commission of a violation of" 21 U.S.C. Sec. 841(a)(1), distribution and possession with intent to distribute cocaine. The government presented evidence that Whitmore placed the telephone call underlying Count 25.

Count 26 of the indictment charged that, on the same date, July 19, 1990, Whitmore, Hairston, and two other co-defendants violated 21 U.S.C. Sec. 841(a)(1) by distributing in excess of 500 grams of cocaine. In other words, the two counts concerned the same transaction; Count 26 pertains to the underlying offense which was facilitated by use of the telephone that is the subject of Count 25.

The jury convicted Whitmore on Count 26, and Whitmore does not challenge the sufficiency of the evidence that supports the jury's verdict. The district court instructed the jury regarding the knowledge required for a Sec. 841(a)(1) violation, 1 and Whitmore does not contest the adequacy of those instructions: "First: The defendant intentionally delivered the control [sic] substance charged in the particular count of the indictment to another person. Second: The defendant knew what the controlled substance was in the particular count of the indictment, or some other prohibited drug."

The facts relating to Count 30 are similar. The indictment charged that Whitmore and Tara Rivers, on July 23, 1990, used a telephone to facilitate a violation of 21 U.S.C. Sec. 841(a)(1), possession with the intent to distribute cocaine base. The government presented evidence that Whitmore placed the phone call underlying this count as well. The evidence shows that at the time of this conversation, Whitmore was attempting to meet with John Daniels to give him rock cocaine, and that during the conversation, Whitmore directed Rivers to take two bags from the refrigerator and place them on the drain board.

Count 31 of the indictment charged that two days later, on July 25, 1990, Whitmore delivered 480.5 grams of a substance containing cocaine base. The evidence reveals that on July 25, Whitmore met with Daniels and another individual, Kisa Hayes, Jr., near a car outside of Rivers's apartment; Whitmore pulled from his sweat pants a black plastic bag; Whitmore and Daniels got into the car, and a few minutes later, Whitmore left without the bag; Whitmore then returned to Rivers's apartment, fanning himself with what appeared to be money. Daniels and Hayes drove away, and a short time later, were pulled over for a traffic violation; when officers searched the car, they discovered a black plastic bag containing rock cocaine. The bag was cold to the touch and was covered with condensation. The jury found Whitmore guilty on Count 31.

II

Whitmore argues that his convictions for use of a communication facility to engage in drug trafficking in violation of 21 U.S.C. Sec. 843(b), 2 must be reversed because the district court's instruction improperly left out a material element of the offense--his knowledge. 3 As Whitmore did not object to the instruction at trial, we review for plain error. United States v. Garcia, 988 F.2d 965, 969 (9th Cir.1993).

The Supreme Court recently fleshed out the requirements for obtaining a reversal based upon Rule 52(b) plain error. United States v. Olano, --- U.S. ----, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). First, there must "indeed be an 'error.' Deviation from a legal rule is 'error' unless the rule has been waived." Id. at ----, 113 S.Ct. at 1777. Second, the error must be " 'plain.' 'Plain' is synonymous with 'clear' or, equivalently, 'obvious.' " Id. Third, the error must " 'affec[t] substantial rights.' " Id. at ----, 113 S.Ct. at 1777-78 (alteration in original). That is, "the error must have been prejudicial: It must have affected the outcome of the District Court proceedings." Id. at ----, 113 S.Ct. at 1778. As the Court noted, the inquiry under the third prong is identical to "harmless error" analysis under Rule 52(a), "with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. In most cases, the Court of Appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial." 4 Id.

Even if a defendant meets these threshold requirements, however, an appellate court is not obligated to reverse the conviction. "The Court of Appeals should correct a plain forfeited error affecting substantial rights if the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " Id. at ----, 113 S.Ct. at 1779 (alteration in original) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). 5

III

We now apply the plain error standards, as articulated in Olano, to Whitmore's challenge to the district court's Sec. 843(b) instruction. There is no question the district court erred in basing its Sec. 843(b) instruction exclusively on the older version of Model Instruction 9.04E, without including an instruction as to Whitmore's knowledge or intent. The knowledge element of Sec. 843(b) requires the government to prove that the defendant knowingly or intentionally used the communication device in order to aid or facilitate the underlying criminal violation. United States v. Whitten, 706 F.2d 1000, 1006 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984); United States v. Turner, 528 F.2d 143, 165 (9th Cir.), cert. denied, 423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371 (1975), and cert. denied, 429 U.S. 837, 97 S.Ct. 105, 50 L.Ed.2d 103 (1976). 6 What is essential is that the defendant knows that he or she is using the communication device to facilitate the drug transaction. With respect to each of the Sec. 843(b) charges in this case, therefore, the prosecution had the burden of proving that Whitmore knew he was using the telephone to further the distribution of drugs.

The error was also "plain," in the sense that it was "clear under current law" at the time the district court instructed the jury. Olano, --- U.S. at ----, 113 S.Ct. at 1777. Whitten and Turner both establish that knowledge is an essential element of the government's case in a Sec. 843(b) prosecution.

We do not believe, however, that the error meets the third requirement of Rule 52(b), since the error, in the circumstances of Whitmore's case, did not "affect substantial rights." Id. at ----, 113 S.Ct. at 1777-78. Rather, the error was harmless beyond a reasonable doubt. "The harmfulness of an error must necessarily be considered in order to determine if the error is plain error justifying reversal, because if an error is harmless, it cannot be plain error." United States v. Gaudin, 997 F.2d 1267, 1271 (9th Cir.) (citing United States v. Hien Hai Hoac, 990 F.2d 1099, 1109 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1075, 127 L.Ed.2d 392 (1994)), reh'g en banc granted, 5 F.3d 374 (9th Cir.1993).

Where a trial court fails to instruct the jury as to the knowledge or intent that is a material element of a crime, the error is constitutional in nature. Martinez v. Borg, 937 F.2d 422, 423 (9th Cir.1991). We review most constitutional errors to determine whether, "beyond a reasonable doubt[,] the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); see also Arizona v. Fulminante, 499 U.S. 279, 306-10, 111 S.Ct. 1246, 1263-65, 113 L.Ed.2d 302 (1991) (opinion of Rehnquist, C.J.). Harmless error analysis under Chapman "looks ... to the basis on which 'the jury actually rested its verdict.' " Sullivan v. Louisiana, --- U.S. ----, ----, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) (quoting Yates v. Evatt, 500 U.S. 391, 404, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991)). "The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Id.

Yates directs us to ask "whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the" constitutional error. 500 U.S. at 404, 111...

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